E-Discovery Best Practices

Assigning a single unique name to identify an individual has created problems that precede the inception of e-discovery. Think of Santa Claus, St. Nicholas, St. Nick, Noel or simply Santa. These variations are associated with a unique individual and yet, our society has been using different names to refer to him since before we were born. In e-discovery, identifying individuals with information relevant to a dispute is one of the first and most important steps we go through at the inception of a case. As such, the identification of the different names for these individuals is critical to ensuring we do not miss potentially relevant files. 

Two recent decisions highlight the usefulness of phased e-discovery as a tool to satisfy Rule 26(b)(1)’s ever-important proportionality requirement. Model orders for patent cases in numerous courts require phased discovery, typically phasing email discovery to occur after other discovery and only if deemed necessary. However, phased discovery is becoming prevalent in other types of cases as well.

Depo packs serve two purposes: (1) to help prepare your client’s witnesses and experts for their depositions by refreshing their recollection of specific events or communications and focusing their attention on issues that are central to the factual story and legal strategy; and (2) to assist the trial attorneys in preparing to depose the other side’s witnesses or defend their own witnesses. This blog provides an overview of depo packs and how they can be a tremendous benefit to the client as well as an effective tool for the attorneys deposing or defending depositions. 

As our work force has shifted to mobile and remote working practices (a trend in place before COVID, which only accelerated during the pandemic), businesses have turned to collaborative messaging tools such as Slack and various versions of Teams to manage communications. On the positive side, by using these messaging tools, organizations are able to more efficiently discuss ideas and brainstorm solutions. However, when an organization becomes involved in a dispute and those communications are potentially relevant to the dispute and need to be preserved and collected, the process may not be as straightforward as a simple email collection.

It’s a Friday afternoon and your weekend is about to start…and yes - you guessed it…a last minute production request comes in and your plans are no longer the same. Like many other e-discovery professionals, I’ve been in this position too many times to count. To ensure that I remember all of the various conditions that should be considered and checked and double-checked in preparing productions, I recommend using a checklist to make sure you are top of all of it!

In DR Distributors LLC v. 21 Century Smoking, Inc, v. CB Distributors, Inc. and Carlos Bengos, 2021 WL 185082, No. 12 CV 50324 (1/19/2021), Judge Johnston of the Northern District of Illinois, granted Plaintiff’s motion for sanctions against Defendants and their former counsel, requiring them to, among other things, pay what was expected to exceed a million dollars of attorneys’ fees and costs to Plaintiff. The Court imposed the sanctions based on its conclusion that Defendants and their former counsel: did not take reasonable steps to preserve ESI (electronically stored information); did not conduct a reasonable investigation of their ESI; did not timely disclose ESI under 26(g); and spoliated thousands of emails and chat messages. This ruling shows that we, as legal practitioners, need to be extremely congizant of our discovery obligations.